Lilla Dhar v. Piarey Lal

Walsh, J.:— In this case we have come to the conclusion that the Judge has gone too far. These is brought by a minor to declare a mortgage deed void on the ground that he was a minor. The Court below in a very sweeping and no doubt correct judgment, held upon the appeal of the money-lender that the minor had been guilty of fraudulent representations with regard to his age, and that he had induced the mortgagee to part with his money by misrepresentation and that it was untrue to the knowledge of the minor the truth not being known to the mortgagee. He has then gone on to use this curious and embarrassing language: “It is unnecessary to consider here whether the whole, consideration was paid or not; This will be a matter for consideration if and when the present appellant files a suit on the basis of the mortgage,” This undoubtedly goes much too far and is embarrassing to both parties. It may be used as a decision that the minor was liable if sued upon the bond and it no doubt is a direct encouragement to the mortgagee to bring a suit. But it makes all the difference where the minor, if he has made a fraudulent representation as regards his age, himself sues, because if the mortgagee sues, inasmuch as there is no estoppel, the mortgagee, cannot enforce a bargain or contract which is made void bylaw and which the conduct of the; defendant cannot make valid.

2. The law in, England, which is the same on this question as in India, was set at rest by an elaborate decision of the Court of Appeal in R. Leslie Ld. v. Sheill (1) which has been considerably utilised and followed in the books and decisions in India. The principle there laid down is cited with approval in the opinion of their Lordships in the case of Mahomed Syedol Ariffin v. Yeoh Ooi Gark (2) and therefore must be taken to be binding, on the Courts in India.

3. In the judgment in the Court of Appeal, Mr. Justice Lawrence also laid down the general principles applicable under either event, namely whether the minor sued, or whether the mortgagee sued, and although this part of his judgment in fact forms no part of the decision in that case, it is an exposition of the law and was really necessary for the conclusion at which the Court has arrived. In that case the jury had found the minor guilty of fraud and the Judge who tried the case had thereupon, in a suit by the money-lender, ordered him to restore the money on the ground of fraud. The Court of Appeal held that such a suit would not He. It was in fact turning a suit based upon a contract which the law, did not recognise into a suit for damages for tort.

4. Mr. Justice Lawrence pointed out that if the minor came into Court when he had been guilty of such fraud, the assistance of the Court would be refused to him unless he made good his representation; that is to say, if the minor sues for redress and has obtained the contract by his own fraud, he cannot get redress unless he restores the other party to the position in which he was. A two Judge Division Bench decision of this Court adopted that principle in the case of Radhe Shiam v. Behari Lal (3) and we think that, that must be accepted as the binding principle in this Province in this rather difficult question. The result is that the plaintiff is not bound to submit to having his suit dismissed. Indeed he is entitled to have it declared that the mortgage deed is not binding on him. But he can only obtain that relief on the condition that he gives back the exact sum which he received from the money-lender at the time of the contract. We remand the case to the lower Appellate Court to ascertain the precise sum received by the plaintiff and I dispose of the suit on these principles. The costs throughout will abide the event of the decision.

5. Case remanded.